Patterns of Campaign Spending and Electoral Competition in State Supreme Court Elections*

Bonneau, Chris W., Justice System Journal

One of the hottest topics in politics today is the method by which state supreme court justices are selected. The debate over whether judges should be appointed or elected (or some combination of both) is raging in several state legislatures, as well as in the media. State supreme court elections have been heavily criticized for the increasing amounts of money that have been raised and spent during campaigns for the state high court bench. In this article, I examine the trends in campaign spending and electoral contests in all contested state supreme court races from 1990 to 2000.

The election of judges is essentially an American phenomenon (Schotland, 1985). while state judges were initially appointed much like their federal counterparts, the election of judges started becoming common with the rise of Jacksonian democracy in the 1830s (Sheldon and Maule, 1997). Since that time, while judicial elections have undergone some changes (such as moving from partisan elections to nonpartisan or retention elections), they have been an enduring institution of political life in the American states. The fact that judicial elections have endured for so long, however, should not be taken as a sign that they are viewed as essential to the politics of state courts.

One of the constant themes of recent media coverage of state supreme courts is criticism of selecting judges for these courts by using electoral processes (e.g., Bell, 2001; Birmingham News, 2001; Campbell, 2002; Dickerson, 2001; Garcia, 2001; Goldberg, Holman, and Sanchez, 2002; Hampton, 2002; Marks, 2001; Marks and Hoke, 2001; Pittsburgh Post-Gazette, 2001; Popkey, 2001; Wenzel, 2001; Wohl, 2000). Criticism of electing judges has not been limited to the media alone, however. Some of the biggest critics of judicial elections are the judges themselves, who abhor needing to campaign to retain their seats on the state high-court bench (e.g., Davidson, 2001; Elliott, 2002; Glaberson, 200Ob; Phillips, 2002; Welsh-Huggins, 2001).1 The central argument advanced by these critics is that raising and spending campaign funds gives the appearance of impropriety, as winning candidates (much as winning candidates for legislative and executive offices) may feel indebted to their contributors and supporters and, thus, favor them in rulings on the bench. This compromises not only the integrity of the bench itself, but also the integrity of those who sit on the state high-court bench.

In this article, I examine recent trends in state supreme court elections in both campaign spending and electoral competition. The popular rhetoric is that these races are becoming more expensive (e.g., Farmer, 2001; Glaberson, 200Oa; Lewis, 2002; Orndorff, 2002; Salter, 2002; Schotland, 2001) and less competitive (e.g., Berry, 2001; Campbell, 2002; but see Hall, 2001), yet, until recently, we lacked reliable, systematic data to evaluate these propositions. Specifically, I answer two questions:

1. Are state supreme court elections becoming more expensive?

2. Are state supreme court elections becoming less competitive?

DATA

To answer the questions posited above, I collected data on all competitive state supreme court elections from 1990 to 2000. I made extensive use of Hall's data set on state supreme court elections (which ended in 1995) and updated the data through the year 2000.2 Additionally, to collect the campaign finance data, I contacted the relevant office in each state (usually located in the secretary of state's office) and obtained the official campaign finance disclosure reports filed by candidates for the state high-court bench.

The campaign finance reports were coded for total amounts spent by the candidates. While each state has different reporting requirements and different filing periods, they all require candidates to file a final report of all expenditures. Since I am primarily interested in the total spending for each candidate in these elections, the fact that the states have different filing requirements and periods does not impede my ability to analyze the data in a systematic fashion. …

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